- The Washington Times - Thursday, December 28, 2000

Dear President-elect Bush: You have a Microsoft problem. Shortly after you are sworn in as president, you will have to decide whether to issue Microsoft a pardon and call off the Justice Department.

Fortunately, your problem has just been made substantially easier with the revelation that Microsoft has been lobbying hard for regulating America Online Inc. That position not only makes the company look hypocritical. It should also considerably cool conservatives' support for Microsoft, which the company won with its anti-regulatory rhetoric.

You will be tempted to let Microsoft go. You will be importuned not only by the world's richest bully he is, of course, the richest everything, including, now, the richest pro-regulation lobbyist but also by dozens of other monopoly-minded millionaires (whose default value, incidentally, is likely to be Democratic).

Don't give in. The Microsoft case offers the clearest example of illegal behavior we've seen from a monopoly in years. Most of the free-range antitrust Reaganauts (Judge Robert Bork and I) have supported the government's case. And the judge, Thomas Penfield Jackson, is a Reagan appointee.

Those Republicans and Reaganauts who oppose the case are viscerally anti-government and anti-Clinton for which they should be applauded. But being anti-Clinton and anti-government are not sufficient guides to public policy. If President Clinton had come out for privatizing Social Security, we might have wondered what intern had made that the price of her silence, but we would have supported it nevertheless.

Besides, it would be unseemly for you to interfere so blatantly in the workings of justice. Legal cases are a mix of fact and law. The facts in the Microsoft case are no longer in dispute Judge Jackson is the only person who has heard them all, and you haven't got time to learn them. The facts in the great IBM case were different. The company changed its business practices (it stopped bundling its products) which is why it was possible for President Reagan's Justice Department to drop the case shortly after Mr. Reagan took office on the same day that it presided over the breakup of AT&T.;

If you contrive to let Microsoft off the hook, you will in effect be saying there will be no more antitrust enforcement. That is a tectonic shift, one which would certainly occupy, and possibly cloud, your administration from the beginning. You will recall that Mr. Reagan was going to abolish the Department of Education (that is what I came to Washington to do) but wisely devoted his energies to more pressing matters, such as winning the Cold War. If you want to pass a $1.3 trillion tax cut and privatize a piece of Social Security, you probably don't want to look as if you are also trying to abolish antitrust notwithstanding its awful pre-Reagan administration history.

Instead you should take the opportunity offered you by the Microsoft case to perform a great service for both the Republican Party and the country: Remove Teddy Roosevelt from his undeserved pedestal in American political history (at the same time funny, isn't it that you will be taking Franklin Delano Roosevelt down a peg or two by partly privatizing Social Security).

The ideal time to criticize TR and the truly awful antitrust enforcement of his time awful because it was based on politics, not economics is when you are supporting a current, and very visible, antitrust case.

As Grover Norquist has written, TR invoked the politics of envy and class hatred, vilified businessmen, launched an antitrust war against his political enemies, called for imposing an income and an estate tax, (you'll be reducing one and abolishing the other) and turned the conservationist movement into a drive to nationalize land in the West. He was our first peacetime president to promote statism, and, says Mr. Norquist, his anti-free enterprise demagoguery has poisoned American politics for a century.

Teddy Roosevelt exerted tremendous, and admirable, willpower to overcome personal tragedy and a significant physical handicap (as funny, isn't it did FDR, who also disdained limited government). TR became our toughest American. His legendary but true qualities, however, are not those that make good public policy for a free people. It may be that Rough Riders always ride roughshod over people's rights that is certainly TR's legacy.

Recommendation: You should insist that Microsoft pay the penalty for its anti-consumer behavior and see this as an opportunity offered to you by our richest American to recast the legacy of our toughest American, and at the same time serve the interests of consumers, most of whom are neither rich nor tough.

This is a chance to shut the window on two bullies, Microsoft and Teddy Roosevelt. You Texans get all the breaks.

Daniel Oliver was chairman of the Federal Trade Commission from 1986 to 1989 during the Reagan administration.

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